| Depositary receipts are the product of cross-border financing restrictions.This Security have unique advantages today as cross-border financing restrictions are gradually reduced.Under the current openness of Chinese capital market,depositary receipts is a good way for China to open its capital market.In June 2018,the China Securities Regulatory Commission issued the “Administrative Measures on the Issuance and Transaction of Depositary Receipts”,which established the basic institutional framework for Chinese depositary receipts and formulated protection measures for many depositary receipt investors.But this law ignore the legal basis of the legal nature of the depositary receipts,resulting in the unclear positioning of the depositary,the unreasonable allocation of the depositary receipts,and the lack of entrusted investor protection measures.The specificity risk of the voucher is targeted and the system is flawed.This paper starts from this issue,discusses the legal nature of depositary receipts,and makes an appropriate positioning for the role of the depositary,which plays an important role in the issuance process of depositary receipts,and rationally distributes the issuer and depository of basic securities.The responsibility of the person in issuing the depositary receipts,and the perfect path of the depository certificate investor protection system for the special risk of the depositary receipts.This paper is divided into three chapters:In chapeter one,analysis on the emergence and development of depositary receipts,and discusses the background and necessity of the introduction of depositary receipts in China: the introduction of depositary receipts is a good way for China's capital market to open continuously,which is conducive to avoiding conflicts of laws.The opening of the domestic capital market will promote the reform of China's capital market.Under the current depositary receipt system in China,the main participants include basic issuers,depositors and depositary receipts investors.They differ from other domestic securities in the issuance transaction process and basic legal structure.Depositary receipts is a new security in China.The chapeter two is the core content of the thesis.It first refutes the current mainstream view that the depositary receipts come from trust or entrusted legal relations,and discriminates the difference between the legal relationship of depositary receipts and the two legal relationships: depositary receipts The legal relationship does not conform to the connotation definition of the trust legal relationship in terms of subject,object and content.The content and nature of the depositary agreement are different from the entrusted contract in the principal-agent relationship.Therefore,the depositary receipt is not a principal-agent legal relationship.After discriminating the difference between the legal relationship between depositary receipts and trust and delegation,referring to the institutional content of the depositary receipts,determin the legal nature of depositary receipts.Specifically: the legal nature of depositary receipts should be analyzed from two levels,one is the nature of the basic legal relationship of depositary receipts,and the other is the securities attributes of depositary receipts.For the basic legal relationship of depositary receipts,through the relationship between the issuer of the depositary receipt,the depositary and the issuer of the underlying securities,the nature of the depositary agreement,and whether the holder of the depositary receipt can be regarded as the underlying security The analysis of four micro-problems of human beings leads to the conclusion that the legal relationship of depositary receipts is a new type of legal relationship.This legal relationship is derived from the legal relationship between stocks and bonds.Expressed by the legal relationship of depositary receipts,and must not be incorporated into any existing basic legal relationship.For the securities attribute of the depositary receipt,by analyzing the connotation of the securities and the characteristics of the depositary receipts,the depositary receipts fully conform to the definition of the connotation of the securities,and it is reasonable to treat the depositary receipts as securities.In the third chapter,on the basis of determining the legal nature of depositary receipts,it analyzes two special risks faced by depositary receipts compared with other securities: the aggravation of information asymmetry and the alienation of principal-agent relationship in corporate governance.Two specific risks all point to the important role of depositary.This chapter starts from this point and proposes three perfect paths for the protection system of China's depositary receipts: for the depositary in the process of depository certificate issuance Important position,it should be clear that the depositary is the issuer in the second issuance of the depositary receipt,and the liability of the depositary receipt investor is based on the depositary agreement;the weak position of the depositary receipt investor and the transnational rights protection Difficulty,can expand the scope of the subject in the civil liability litigation of depositary receipts,allowing the CSI Small and Medium Investor Service Center to file a lawsuit in its own name,and in the choice of jurisdiction rules,it is guided by the protection of the interests of investors,and appropriate arrangements The choice of space rather than “one size fits all” allows only domestic laws to be applied;in order to enhance investor confidence in the depositary receipt market,the scope of protection of the Securities Investor Protection Fund should be expanded to cause investment in the depositor's bankruptcy or misappropriation of depository property.When the damage is caused by the protection fund,the investor will protect the investor when the investor files a lawsuit against the depositor or the underlying securities issuer.Gold provides financial support to enhance the ability of investors' rights. |
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